Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/37

 Calhoun in 1847, when this doctrine was first broached, which is to this effect: That the Territories are acquired by the common blood and treasure, and are to be held for the common benefit of the whole people of the United States, and that any measure which gives an advantage in the use of this property to one class or section is a breach of trust by congress, and therefore void. It is undoubtedly true that congress is a trustee for the whole people; but, in the words of Mr. Justice Curtis: "The Territory was acquired for them in their collective, not their individual capacities. It was acquired for their benefit as an organized political society, subsisting as 'the people of the United States,' under the Constitution of the United States; to be administered justly and impartially, and as nearly as possible for the benefit of every individual citizen, according to the best judgment and discretion of the congress; to whose power, as the legislature of the nation which acquired it, the people of the United States have committed its administration." p. 626. And the courts have no power to revise the action of congress on this matter, if it should be thought unjust. The establishment or prohibition of slavery is a question of policy, involving many considerations, but all of a strictly political nature. Even Mr. Calhoun evidently did not consider that such a prohibition would be strictly, and in its legal sense, unconstitutional; for not only had he approved the Compromise Act as one of the members of President Monroe's Cabinet, and voted for acts of a similar nature; but after his resolutions had been presented, he and his friends voted to extend the compromise line to the Pacific Ocean in 1848, and again for the act of 1850 establishing a territorial government for New Mexico, which reaffirmed the prohibition of slavery in Texas north of that line. The power to prohibit slavery is one of the ordinary powers of legislation, which has been exercised in all those States which are now free, and also by congress from the foundation of the government. The Ordinance of 1787, which all the judges, with the exception of Mr. Justice Daniel, consider to have been valid after it was re-enacted by the first Congress, prohibited it. So did the several acts for the government of the Territories of Indiana, Illinois, Michigan, Wisconsin, Iowa, and Oregon, and the act for the admission of Texas. Yet all these Territories were acquired by the common efforts and held for the common good; and the cessions by Virginia and the other States expressly recognize and are founded upon this fact.

But the most novel and startling argument of all is, that